X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

What is the definition of “success” in a business litigation? This is the first question a litigator should ask their client in the initial meeting. In some cases, there are business goals that go beyond dollars and cents. However, in most cases, businesses will define success by comparing the aggregate cost to either the total recovery (if a plaintiff) or the reasonable exposure (if a defendant). The expense of modern day litigation mandates that a business litigator not only provide a forecast for various stages of a commercial case but also consider proactive strategies for managing expenses. Many companies also seek modified fee arrangements including flat fees, capped fees and structures that provide an incentive for both success on the merits and in controlling expenses. The growth of litigation funding has added more spice to the recipe. In this environment, fee-shifting strategies take on added importance and should be considered early and often in appropriate cases.

This article examines fee-shifting options in the context of the American Rule in which parties presumptively pay their own fees regardless of the outcome, including the offer of judgment rules under FRCP 68 and CPLR 3220. Many of these opportunities are misunderstood and underutilized. In doing this analysis, it is helpful to begin with an overview of the historical background for fee-shifting in the United States.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at customercare@alm.com

 

Library of New York Plaintiffs' Personal Injury FormsBook

The 750+ page book serves as a comprehensive personal injury firm forms library. The forms includes: Initial Intake Forms, Client Letters, Pre-Suit Forms, Sample Complain...

Get More Information
 

America's Claims Executive (ACE) 2020Event

ACE Leadership Forum & Expo is the annual conference for Senior Claims Executives in Insurance organizations.

Get More Information
 

Banking Litigation & Regulation Forum 2020Event

Delivers the key insights and practical solutions to acutely address the complex minefield of UK banking litigation & regulation.

Get More Information
 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.